Tag Archives: Race

There has been a lot of talk lately about race-based reparations, initiated by thisAtlantic article. (See also here, here, here.) I’m not a lawyer, but I do teach Graduate Law & Econ, and the discussion I’ve seen on reparations has ignored key legal issues. So let me raise some of those issues here.

The argument for reparations is based on the very solid well-accepted principle that when A harms B, A should compensate B, both to help B and to discourage future A’s from acting similarly. But over the centuries we’ve collected many other legal principles which limit the scope of application of this basic legal principle.

For example, we usually require that a specific person B identify a specific person A, and offer clear evidence of a particular clear harm that B suffered, relative to some other state that B had a right to reasonably expect. We also require a clear causal path between A’s acts and B’s harm, a path that A could have reasonably foreseen. We usually require public notice about legal prohibitions, we forbid double jeopardy and retroactive rules, and we impose statutes of limitations to limit the delay between act and claim.

Each of these limitations no doubt prevents some Bs from getting compensation from some As, and thus fails to discourage related As from causing related harms. But these limitations are usually seen as net gains because they prevent fake-Bs from using the legal system to extract gains from not-actually-As, which would reduce the perceived legitimacy of the whole legal system due to a perception that such fake cases were common.

Now it is actually not obvious to me that all these limitations on law are net gains. I can see the arguments for allowing hearsay evidence, emotional harms, double jeopardy, retroactive rules, no statutes of limitation, and taking compensation from non-A folks that As care about. That is, I can imagine situations where each of these limitation violations might usefully help to discourage As from hurting Bs.

Our limitations on law have so far mostly prevented people from using the legal process to obtain race-based reparations. After all, cash reparations for US slavery would react to a broad varied pattern of centuries-old harm by transferring from folks distantly and varyingly related to As to others distantly and varyingly related to Bs. Such transfers could only very crudely track the actual pattern of cause and harm. So new policies of race-based reparations would in effect embody many new exceptions to our usual limitations on legal suits. And they would create precedents for future exceptions, making it easier to obtain further reparations based on race, gender, and many other factors.

So regarding race-based reparations, what I most want to hear is a general principled discussion about the pluses and minuses of our usual limitations on law. Yes, we may have imposed overly strict limits. And yes, the legitimacy of the legal system can also be reduced when everyone knows of big harms the law didn’t address. But still, we need to identify principles by which we could make exceptions to the usual limitations.

Yes, one simple principle might be to give big compensation whenever the chattering classes nod sagely enough and say loudly enough that yes it is the right thing to do. But it would be nice to hear concrete arguments on why this approach tends to avoid the usual problems that the limitations on law are said to be there to avoid. Might it be better to create a whole new system of reparation courts that operate according to new legal principles?

Of course in signaling terms, one’s willingness to throw out all the usual legal precautions to endorse race-based reparations can signal exceptional devotion to the race cause. But is this really a path we want to go down, competing to outdo each other in our eagerness to toss out our usual legal protections in order to signal our devotion to various causes?

That honest conversation about race everyone wants? We can’t handle it. … We say we want the conversation. But we just can’t handle it — especially in public. … [In 2008,] I would have wanted to hear a white Southern Republican such as Barbour give an honest speech on race from his perspective, in an effort to explain and heal. It might have proved uncomfortable, but we would have listened, learned and moved forward with the knowledge gained. But I also understand Barbour’s reticence. To deliver such a speech, with power and nuance, would mean putting one’s livelihood — in politics and business — on the line. It would require a bravery and selflessness few could muster. (more)

Capehart dares us to prove him wrong. So let me try. (At least at a meta-level.)

Today academia has a pecking order. For example, math is high while education studies are low. Academics sometimes argue about this order, mentioning arguments for and against each discipline. Sometimes people invoke misleading stereotypes, and sometimes others correct them. While misconceptions remain common, we probably still have more accurate beliefs on how disciplines differ than we would if these conversations were forbidden.

Long ago when issues of race and gender equality were first raised in TV shows, I remember (as a kid) seeing characters argue about the differing features of various races, genders, etc. Claims were made, rebutted, etc. This helped I think. But today it is never ok, even in private, to describe any negative tendencies of “low” races, nor any positive tendencies of “high” races, at least if that suggests others have those tendencies less. And this basically bans the sort of useful talk that academics now have about their pecking order. A similar ban holds for much of gender talk.

The reason that such talk is useful is that it is generally harder to evaluate behaviors and people outside of the cultures and roles that you know best. In the cultures I know best, such as academic economics or research software, I feel at least modestly competent to evaluate behaviors and people, especially for people who take on the same roles that I have taken.

Yes, even there people vary greatly in personality, smarts, experience, etc., but I have collected many standard tricks for discerning such things. The fact that folks from another race or gender might have somewhat different means or variances doesn’t matter that much, as long as my standard tricks work similarly for them. It hasn’t seemed hard for me to deal fairly with folks from other races and genders, as long they stayed close to roles I knew well, centered within cultures I knew well.

However, the further that people and contexts get from the cultures and roles that I know best, the less reliable are my standard tricks. People from other races and genders often have experienced substantially differing cultures and roles than the ones I’m most familiar with. So to make sense of behavior in such cases, I have to fall back somewhat onto beliefs about which of my usual tricks degrade how fast as various parameters change with cultures and roles. That is, I must rely on stereotypes about what tends to vary by cultures and roles, and it is too easy to be wrong about those. In particular I must rely on my best guesses about how many things differ for the different cultures and roles associated with different races and genders.

Sometimes people say you shouldn’t use stereotypes, but should instead just “judge each person and situation by itself.” But you just can’t do that if you don’t know how to interpret what you see. Since behaviors and features change with cultures, you need some sense of the cultural origins of what you see in order to interpret it. And since we all can’t immerse ourselves in depth in many different cultures, we need to talk to each other to share what we’ve seen.

If academics weren’t allowed to say bad things about the culture of education studies, nor good things about the culture of math, I expect we’d mostly just stop talking how these cultures differ. But we’d be pretty sure that there are differences, and that all cultures have both good and bad aspects. So we’d have stereotypes, and use them when doing so wasn’t overly visible. Similarly, our effective ban on race and gender talk doesn’t stop us from believing that many important things change with the differing cultures and roles that have correlated with races and genders. Nor does it keep us from often acting on such beliefs.

Our choice to ban saying bad things about “low” races and genders, or saying good things about “high” races and genders, was clearly a costly signal, and it did send the message “we care enough about keep good relations with you to pay this cost.” But part of the cost was to make it harder to use talk to reduce the impact of misleading race and gender stereotypes on our actions. We might have been better off to instead pay a different kind of cost, such as cash transfers.

I’m basically invoking the usual argument for the info value of free speech here. It is an argument that is often given lip service, but alas our commitment to it is far weaker than our lip service would suggest.

Added 14May: Maybe when people say they want a “conversation about race”, they don’t mean that old white men should do any talking beyond nodding agreement and sympathy with other speakers.

This article by Ron Unz is long and rambles a bit, but deserves its provocative reputation. It offers data suggesting that over the last few decades the most elite US colleges have had systematically biased admissions, against asians and for jews, when measured against other standards, like tests and top math/sci competitions. Given the strong academic rhetoric against racial discrimination, you might expect this to cause a fervor, and to result in big changes soon. But I don’t expect much soon – most academics are from those schools, and benefited from those biases, loud complaining isn’t the asian style, and the larger society doesn’t much care because this discrimination is mostly limited to these schools.

The problem comes mainly from granting discretion to admissions personal to make subjective judgements. One solution is to just use objective features like test scores. But Unz worries about ambitious kids wasting their youth in mostly useless test prep. Also, application packets may contain other useful but harder to read clues about promising students. Unz instead prefers to admit “qualified” students at random, at least for most of the slots. But once everyone knew for sure that the elite schools didn’t actually have much better students, it isn’t clear why they would remain the elite schools.

As usual, mysolution involves prediction markets. As I posted here five years ago, we could hide clearly identifying info about students, post their application packets to the web for all to see, and let anyone bet on the consequences of each student going to each school. Students might care about their chance of graduating, their income later, and some measure of satisfaction. Elite schools might care more about the chances of students being “successful” someday. Different schools might use different measures of success, such as with different weights for achievement in sports, politics, business, arts, etc. Schools could admit the students with the best chance to succeed by their measure, and students could apply to and then go to the school giving the best chance if achieving their goals. Or students could not go to school at all, if that was estimated to be best.

Of course speculators will favor students showing concrete signs of future success, and so ambitious students would spend their youth trying to achieve such signs. But instead of locking in particular limited metrics like standard test scores, where prep efforts are mostly wasted, this process would create an open competition to find signs of future success where efforts to gain them are more useful. After all, your chance of success later should be higher the more the signs you pursue push you to gain useful skills and habits in the process.

Yes it would be hard to get people to accept that such markets are accurate and hard-to-manipulate enough for this purposes. But equally hard, I expect, would be getting elite schools to say explicitly what sort of success they most want from students. They probably pretend to care more about admirable success, like being a famous writer, than they actually do.

Added 8p: Regarding anonymity, an obvious solution is for the official application to be completely public. Usually only a small fraction of the relevant application info will be things that are better kept private. Regarding that info, the applicant can just reveal that extra private info to a few trusted folks who are willing to trade in these markets. Markets do not need all traders know all relevant info to work well.

Once again, in the midst of the cacophony, calls abound for a national “dialogue” on race. Yet our nation cannot muster the patience or stamina to sustain such a discussion beyond a single news cycle. … At the barest suggestion of race, we line up at opposite corners and start hurling accusations. …

Racial inequality is perpetuated less by individuals than by structural racism and implicit bias. Evidence of structural inequality is everywhere: in the grossly disproportionate numbers of young black men and women in prison; in the color of students shunted into remedial and special education tracks. … It is evident, too, in the history of blatant discrimination against black farmers practiced by the Agricultural Department.

But that does not make doctors, nurses, police officers, judges, teachers, lawyers, city planners, admission officers or others prejudiced. Most are well-intentioned professionals who believe themselves to be free of racial bias. … Implicit bias is a reality we must confront far more openly. A growing mass of compelling research reveals the unconscious racial stereotypes many of us harbor that affect our decisions. … White and black test-takers match black faces more quickly than white ones with words representing violent concepts. … The more stereotypically black the features of a criminal defendant, the harsher the sentence he or she is likely to receive. Implicit bias has been shown to factor into hiring decisions and into the quality of health care that individuals receive. …

The good news is that structures can be dismantled and replaced and unconscious biases can be transformed. … First, though, they must be acknowledged. … Our nation has to stop denying the complexity of our racial attitudes, history and progress. Let’s tone down the rhetoric on all sides.

Many folks reasonably suspect invitations to discuss race are traps – it seems hard to say much on race without being accused of racism, racial insensitivity, etc. But let me cautiously weigh in anyway.

Yes, we have unconscious expectations about others, yes those depend in part on race, and yes those expectations are a mixture of info and error. Some unconscious race-based expectations are a reasonable summary of actual common differences between races, while others are mistaken, with expectations that are too favorable or unfavorable for particular races.

I see two basic approaches to reducing racial expectation errors:

Rely on, and perhaps improve, local incentives for individual decision makers to identify and correct their own errors, and to select themselves into decision places well matched to their abilities to avoid such errors.

Have a broad conversation on the rough sorts of racial errors we expect to be common, then authorize officials to use discretion to pick regulations to reduce such errors at an acceptable cost, relative to other considerations.

One big problem with the regulation approach is that giving regulators discretion can make things worse, as well as better. Two examples above, of racial errors by sentencing judges and by the Ag Dept, seem examples where regulator discretion went quite wrong. Since medicine is heavily regulated to preserve doctor discretion, racial treatment errors by doctors has a similar cause.

Unfortunately, judges, ag dept officials, and regulated doctors have only weak incentives to overcome their racial biases. Sure they might fear that a broad conversation will arise and create a consensus among voters both that such folks had been racially biased, and that they should be punished strongly for it. But really, how likely is that?

In contrast, employers choosing who to hire can have much stronger incentives. If a labor market isn’t too heavily mis-regulated, any employer could profit substantially by preferring to hire folks that other employers unfairly neglect. If ordinary hiring specialists are too busy or distracted to notice such opportunities, hiring consultants can specialize in charging to identify such opportunities.

Yes, such incentives don’t prevent all employer racial bias, and yes thoughtful hard-working well-meaning regulators (including politicians and civil servants) can and have developed labor regulations that could reduce such bias. The problem is, when you empower regulators to fix such problems, you empower many other kinds of regulators as well, also including lazy stupid racially-biased ones. And you give all these regulators only weak incentives to overcome their biases.

For problems about which many people feel strongly, it is indeed a feels-right forager way to seek a communal conversation to identify new communally-enforced social norms to solve the problem. In large modern societies, however, this urge to solve problems by national conversations and laws seems largely dysfunctional.

Much better, when possible, is to rely on local incentives. For example, if employer incentives to overcome racial biases seem currently too weak, let’s up the ante by enabling corporate raiders, proxy access, etc. Forms of futarchy can give participants strong incentives to overcome racial biases regarding policy recommendations. There is plenty we can do, if people really want to overcome racial biases.